City of Galveston v. Smith

• Citation: 15 S.W. 589
• Parties: CITY OF GALVESTON v. SMITH.
• Decision Date: 27 February 1891
• Court: Texas Supreme Court

15 S.W. 589

CITY OF GALVESTON v. SMITH.

Supreme Court of Texas.

February 27, 1891.

Appeal from district court, Galveston county.

S. W. Jones, for appellant. S. S. Hanscom, for appellee.

HENRY, J.

This suit was brought by the appellee to recover damages for personal injuries sustained by her caused by a defective covering of a culvert. Upon the verdict of a jury judgment was rendered in favor of the plaintiff for $600. Appellant contends that the court erred in refusing to give, at its request, the following charge: "Notwithstanding the jury may believe from the evidence that the covering to the drain on which the plaintiff is alleged to have been injured had a loose plank thereon, and was, by reason thereof, defective, and that the injury to the plaintiff was the result of such defect, yet these facts alone would not be sufficient evidence of negligence on the part of the defendant. In order to charge the defendant with negligence, it must appear from the evidence, not only that the said covering to the drain was defective at the time of the alleged injury, but also either that such defect was actually known to the defendant, through some of its officers or servants having charge of such matters, or that the defect had existed for such a length of time prior to the alleged injury that the city authorities, if exercising ordinary diligence, would or should have known of its existence." We think that the propositions contained in the requested charge are correct when applied to suits against municipal corporations for damages. This court said in the case of the City of Galveston v. Barbour, 62 Tex. 176: "In cases of this character, to render a municipal corporation liable, there should be evidence showing that it had notice of such defect as caused the injury; for it cannot be presumed that notice of every trifling defect exists." 2 Dill. Mun. Corp. §§ 1024, 1025; City of Chicago v. McCarthy, 75 Ill. 602. The supreme court of Michigan in the case of Dewey v. City of Detroit, 15 Mich. 313, say: "That minute daily inspection which is possible and necessary on a line of railroad, where a small break may endanger hundreds of lives, would be absurd and impracticable in relation to sidewalks. A city, responsible as it must be only for the neglect incumbent on its agents, cannot be distinguished in its liabilities from individuals who might be intrusted with the same kind of duties. In this case the commissioner may be fairly regarded as representing the...